Florida Supreme Court Refuses to Adopt Daubert as Rule of Procedure

          The Florida Supreme Court has rejected the Daubert Amendment to the extent that it is procedural. The Court cited “grave” constitutional concerns, such as undermining the right to a jury trial and denying access to courts, in declining to adopt the Amendment as a rule of procedure. The Florida Legislature had adopted the Daubert standard in sections 90.702 and 90.704, Florida Statutes, in 2013.

          Florida was in the minority of states, which utilized a Frye standard.  The Frye standard focuses on whether the expert’s testimony is “generally accepted” in a particular scientific community.  Daubert, on the other hand, is much stricter and provides that a trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

          The February 16, 2017 Opinion, Case No. SC-16-181, In Re:  Amendments to the Florida Evidence Code, was a per curiam decision, with Justice Polston concurring in part and dissenting in part.  In refusing to adopt Daubert, the Court left for another day, whatever constitutional challenges may be brought to sections 90.702 and 90.704, Florida Statutes.

          In the same opinion, the Court declined to adopt amendments to section 766.102, Florida Statutes (Same Specialty Amendment), which would require a standard-of-care expert in medical malpractice actions to specialize in the “same” specialty as the healthcare provider against whom or on whose behalf the testimony is offered.  The Court also declined to adopt amendments to the hearsay exception relating to the reporting of abuse of elderly persons or disabled adults. 

The case is In Re: Amendments to the Florida Evidence Code, SC16-181 (Fla. February 16, 2017). 

Written By: Kimberly Kanoff Berman, Esq.

Categories: Medical Malpractice

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